Constitution - Criminal law - Assessment of evidence - Provision stating certificate to
be prima facie proof of circumstances of offence - Burden of proof - Right to trial
in due course of law - Proportionality - Whether provision proportionate to end
sought to be achieved - Equal Status Bill, 1997 - Constitution of Ireland, 1937,
Article 38, s. 1.

On the 3rd April, 1997, the President of Ireland referred the Employment Equality
Bill, 1996, to the Supreme Court pursuant to the provisions of Article 26, s. 1, sub-s.
1 of the Constitution of Ireland, 1937, for a decision as to whether the provisions of
the Bill, or any of them, were repugnant to the provisions of the Constitution or any
provisions thereof.

In its decision of the 15th May, 1997, the Supreme Court held that the Bill was
repugnant to the Constitution.

Section 15 of the Employment Equality Bill, 1996, provided, inter alia, for the
vicarious liability of employers in relation to criminal offences under the legislation.
The offences for which the employer was sought to be made vicariously liable were far
from being regulatory in character but likely to attract a substantial measure of
opprobium. The Supreme Court held that the social policy of the Bill did not justify
the introduction of such a change in the criminal law—the provisions were disproportionate
to the mischief sought to be avoided and were therefore contrary to Article 38,
s. 1 of the Constitution and also repugnant to the provisions of Article 40, section 1.

Section 63, sub-s. 3 of the Employment Equality Bill, 1996, provided for the use
of a certificate as a form of proof in a criminal trial relating to offences under the Act.
The Supreme Court held that the process of trial by certification where the certificate
purported to prove the entire case, was an intrusion into the rights of an accused to a
trial in due course of law; that there was no proportionality between the process of trial
by certification, the objective of the Bill, and the limitations of the constitutional right;
and, accordingly, the use of such a certificate was so contrary to the concept of a trial

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in due course of law as to render the provision contrary to Article 38, s. 1 of the
Constitution.

On the 7th May, 1997, the President referred the Equal Status Bill, 1997 ("the
Bill"), which had been passed by the Oireachtas on the 29th April, 1997, to the
Supreme Court for a decision on the question of whether the Bill or any provision
thereof was repugnant to the Constitution.

The Bill contained two sections, s. 40, sub-s. 3 and s. 71, which were in all material
terms similar to the provisions of s. 63, sub-s. 3 and s. 15 of the Employment
Equality Bill, 1996.

It was submitted by counsel on behalf of the Attorney General that, notwithstanding
the fact that s. 40, sub-s. 3 and s. 71 of the Bill must be struck down by the Court
as being repugnant to the provisions of the Constitution, the Court was obliged under
Article 26 to consider whether or the remaining provisions of the Bill were repugnant
to the Constitution.

Counsel appointed to oppose the Bill contended that since two provisions of the
Bill were indisputably repugnant to the Constitution, no purpose would be served in
the Court considering the remaining provisions as the President would be precluded
from signing the Bill in any event.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Barrington and
Keane JJ.) in deciding that the Bill was repugnant to the Constitution, 1, that the
obligation imposed on the Court by s. 1, sub-s. 1 and s. 2, sub-s. 1 of Article 26, was
to decide each and every question referred to it by the President in accordance with the
terms of Article 26. However, since at the outset of the reference it was clear that two
provisions of the Bill were indisputably repugnant to the Constitution, the Bill enjoyed
no presumption of constitutionality. Accordingly, there was no justiciable issue for the
Court to try.

2. The fact that provisions of the Equal Status Bill, 1997, were rendered inoperable
because of the decision of the Court that the Employment Equality Bill, 1996,
was repugnant to the Constitution, did not of itself make the Bill unconstitutional.

Hamilton C.J.

The Equal Status Bill, 1997, was passed by the Oireachtas on the 29th
April, 1997. On the 7th May, 1997, the President of Ireland referred the
Bill to the Supreme Court pursuant to the provisions of Article 26, s. 1,
sub-s. 1 of the Constitution of Ireland, 1937, for a decision as to whether
the provisions of the Bill, or any of them, were repugnant to the provisions
of the Constitution or any provisions thereof. The relevant sections
of the Bill are set out in full in the judgment of the Court, infra.

On the 10th and 11th June, 1997, the Supreme Court (Hamilton C.J.,
O'Flaherty, Denham, Barrington and Keane JJ.) heard argument from
counsel assigned by the Court to oppose the Bill, and from counsel on
behalf of the Attorney General.

Pursuant to the provisions of Article 26, s. 2, sub-s. 2 of the Constitution,
the decision of the Court was pronounced by a single member.

Hamilton C.J.

18th June 1997

The decision of the Supreme Court on the reference to it by the President
of the Equal Status Bill, 1997, pronounced pursuant to Article 26, s.
2, sub-s. 1 of the Constitution of Ireland on the 19th June, 1997.

The Reference

By order given under her hand and seal on the 7th May, 1997, the
President, Mary Robinson, after consultation with the Council of State, in

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pursuance of the provisions of Article 26 of the Constitution, referred the
Equal Status Bill, 1997 ("the Bill") to the Supreme Court for a decision on
the question as to whether the said Bill or any provision or provisions
thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the Reference

Counsel were assigned by the Court to argue that the Bill is repugnant
to the Constitution.

Prior to the oral hearing, counsel assigned by the Court presented in
writing heads of the argument intended to be made by them and submissions
of law in support of such arguments.

These were replied to in writing on behalf of the Attorney General
together with submissions of law on his behalf.

At para. 3.2.1 of the submissions filed on behalf of the Attorney General
it is stated that:

"Section 71 of the Bill, which provides, inter alia, for vicarious
liability of employers in relation to criminal offences, is in similar
terms to s. 15 of the Employment Equality Bill, 1996. The latter provision
has been held to be repugnant to Articles 38, s. 1 and 40, s. 1 of
the Constitution in the decision of the Court in The Employment
Equality Bill, 1996. It is accepted by reason of that decision of the
Court [that] s. 71 of the Bill appears repugnant to Articles 38, s. 1 and
40, section 1."

In para. 3.2.2 of the written submission it is stated that:—

"Section 40, sub-s. 3 of the Bill is in similar terms to the provisions
of s. 63, sub-s. 3 of the Employment Equality Bill, 1996. This
relates to the admission as evidence in a criminal prosecution of facts
in a document certified by the Director. The Court has held that s. 63,
sub-s. 3 of the Employment Equality Bill, 1996, is repugnant to Article
38, s. 1 of the Constitution and it appears the decision of the Court
in relation to s. 40, sub-s. 3 of the Bill must be the same."

In para. 3.3.1 of the written submissions, it is submitted on behalf of
the Attorney General that:—

". . . having regard to the conclusion of the Court as to its obligations
under Article 26 upon such a reference in its decision in The
Employment Equality Bill, 1996, the Court should now consider, not
withstanding the repugnancy of s. 40, sub-s. 3 and s. 71, all the other
provisions of the Bill, and in particular those which have been impugned

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by counsel assigned by the Court and give its decision upon
the constitutionality of such provisions."

The Court considered that, in these circumstances, the procedure it
should adopt was to hear at the outset arguments on behalf of the Attorney
General in support of the submission that, notwithstanding the concession
in paras. 3.2.1 and 3.3.3 of the written submissions that s. 71 and s. 40,
sub-s. 3 appear to be repugnant to the Constitution, the Court should
consider all the other provisions of the Bill, and in particular those which
had been impugned by counsel assigned by the Court, and give its
decision upon the constitutionality of such provisions.

On the 10th and 11th May, 1996, the Court heard oral submissions on
this issue from counsel on behalf of the Attorney General and counsel
assigned by the Court and at the conclusion of such oral submissions
reserved its judgment.

Problems with regard to the Equal Status Bill, 1997

The aforesaid approach was adopted by the Court because of certain
inherent and obvious difficulties which arose in connection with the Bill.

This Bill was passed by the Oireachtas on the 29th April, 1997, at a
time when the Employment Equality Bill, 1996, had not been signed by
the President in accordance with the provisions of Article 13, s. 3, sub-s. 1
of the Constitution but had by order given under her hand and seal on the
3rd April, 1997, been referred to the Supreme Court for a decision on the
question as to whether the Employment Equality Bill, 1996, or any
provision or provisions thereof were repugnant to the Constitution or to
any provision thereof. The signature of the President is an absolute
requirement before a Bill passed by both Houses of the Oireachtas is
enacted into law.

Article 13, s. 3, sub-s. 1 of the Constitution provides that:—

"Every Bill passed or deemed to have been passed by both
Houses of the Oireachtas shall require the signature of the President
for its enactment into law."

Article 25, s. 1 of the Constitution provides that:—

"As soon as any Bill . . ., shall have been passed or deemed to
have been passed by both Houses of the Oireachtas, the Taoiseach
shall present it to the President for his signature and for promulgation
by him as a law in accordance with the provisions of this Article."

Article 25, s. 4 provides:—

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"1. Every Bill shall become and be law as on and from the day on
which it is signed by the President under this Constitution, and
shall, unless the contrary intention appears, come into operation
on that day.

2. Every Bill signed by the President under this Constitution shall be
promulgated by him as a law by the publication by his direction
of a notice in the Iris Oifigiúil stating that the Bill has become
law."

Article 26, s. 1, sub-s. 3 of the Constitution provides that:—

"The President shall not sign any Bill the subject of a reference to
the Supreme Court under this Article pending the pronouncement of
the decision of the Court."

Article 26, s. 3, sub-s. 1 provides that:—

"In every case in which the Supreme Court decides that any provision
of a Bill the subject of a reference to the Supreme Court under
this Article is repugnant to this Constitution or to any provision
thereof, the President shall decline to sign such Bill."

Notwithstanding these provisions, and the situation created thereby,
the Oireachtas passed the Equal Status Bill, 1997, which Bill presumed
that the terms of the Employment Equality Bill, 1996, had been enacted
into law.

The Court pronounced its decision on the reference of the Employment
Equality Bill, 1996, on the 15th May, 1997.

The Bill contains numerous references to the Employment Equality
Act, 1997, when, in fact, no such Act existed at the time of the passing of
the Bill because it had not been signed by the President or exists, because
the Supreme Court having decided that certain provisions were repugnant
to the Constitution the said Bill was not signed by the President.

It is unfortunate that the Oireachtas passed the Bill, at a time when the
Employment Equality Bill, 1996, had been referred by the President to the
Supreme Court for a decision as to whether it or any provision of it was
repugnant having regard to the terms of the Constitution, because the Bill
and the Employment Equality Bill, 1996, were inextricably linked; the
Bill contained two sections viz. s. 40, sub-s. 3 and s. 71 which were, in all
material terms, similar to the provisions of s. 63, sub-s. 3 and s. 15 of the
Employment Equality Bill, 1996, which had been found by this Court to
be repugnant to the Constitution; and some of the provisions of the Bill
were dependant upon the enactment into law of the provisions of the
Employment Equality Bill, 1996.

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Section 40, sub-s. 3 of the Equal Status Bill

Section 40, sub-s. 3 of the Bill provides that:—

"In any proceedings for an offence under this section, a document
purporting to be certified by the Director and relating to the circumstances
in which the offence is alleged to have occurred shall be received
as prima facie evidence of the facts stated therein."

This provision in the Bill is in all relevant terms similar to the terms
of the provisions of s. 63, sub-s. 3 of the Employment Equality Bill, 1996,
which provides that:—

"In any proceedings for an offence under this section, a document
purporting to be certified by the Director or to be sealed with the seal
of the Court and relating to the circumstances in which the offence is
alleged to have occurred shall be received as prima facie evidence of
the facts stated therein."

"The use of such a certificate is so contrary to the concept of affording
a person a trial in due course of law as to render the provision
contrary to Article 38, s. 1 of the Constitution. Accordingly on this
ground the Court finds the provision repugnant to the Constitution."

Having regard to such finding and to the fact that counsel on behalf of
the Attorney General has submitted no argument to the contrary, the Court
must of necessity find that the provisions of s. 40, sub-s. 3 of the Bill are
repugnant to the Constitution for the reasons set forth by the Court in its
judgment on the reference to it of The Employment Equality Bill, 1996 .

Section 71 of the Equal Status Bill, 1997

Section 71 of the Bill provides that:—

"(1) Anything done by a person in the course of the person's employment
shall be treated for the purpose of this Act as done also by
that person's employer, whether or not it was done with the employer's
knowledge or approval.

(2) Anything done by a person as agent for another person, with the
authority (whether express or implied and whether precedent or
subsequent) of that other person shall be treated for the purposes
of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect
of an act alleged to have been done by an employee of the
employer, it shall be a defence for the employer to prove that the

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employer took such steps as were reasonably practicable to prevent
the employee—

(a) from doing that act, or

(b) from doing, in the course of the employee's employment, acts
of that description."

This provision of the Bill is in all material respects identical with the
terms of s. 15 of the Employment Equality Bill, 1996, which provided
that:—

"(1) Anything done by a person in the course of his or her employment
shall be treated for the purposes of this Act as done also by
that person's employer, whether or not it was done with the employer's
knowledge or approval.

(2) Anything done by a person as agent for another person, with the
authority (whether express or implied and whether precedent or
subsequent) of that other person, shall be treated for the purposes
of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect
of an act alleged to have been done by an employee of the
employer, it shall be a defence for the employer to prove that the
employer took such steps as were reasonably practicable to prevent
the employee—

(a) from doing that act; or

(b) from doing in the course of his or her employment acts of
that description."

"to render an employer liable to potentially severe criminal sanctions
in circumstances which are so unjust, irrational and inappropriate
would make any purported trial of such a person not one held in
due course of law and, therefore, contrary to Article 38, s. 1 of the
Constitution and also repugnant to the provisions of Article 40, s. 1 of
the Constitution."

In view of the fact that the provisions of s. 71 are similar to the provisions
of s. 15 of the Employment Equality Bill, 1996, and the fact that
the counsel for the Attorney General submitted no argument to the
contrary, the Court is satisfied that, for the reasons stated in the course of
its decision in the reference of the Employment Equality Bill that the
provisions of s. 71 of the Bill are repugnant to the provisions of the

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Hamilton C.J.

Having regard to the admitted inevitability of such findings by the
Court and the consequence that the President would be precluded from
signing the Bill, the Court had sought submissions from counsel as to
whether the Court was obliged to consider all the other provisions of the
Bill and to decide whether any other provisions of the Bill were repugnant
to the Constitution or any provision thereof.

The fact that provisions of the Bill were dependent upon the enactment
into law of the Employment Equality Bill, 1996, is obvious, even
from a consideration of the terms of the long title to the Bill and the
numerous references contained therein to the Employment Equality Act,
1997.

The long title to the Bill provides that it is:—

"An Act to promote equality and to prohibit types of discrimination,
harassment and related behaviour in connection with the provision
of services, property and other opportunities to which the public
generally has access, to provide for remedying certain discrimination
and other unlawful activities, to provide for the administration by the
Equality Authority of various matters pertaining to this Act and the
Employment Equality Act, 1997, and to amend certain Acts in relation
thereto."

The following sections of the Bill further illustrate the link between
the Bill and the Employment Equality Bill, 1996, and its dependency on
the enactment into law of the Employment Equality Bill, 1996.

Section 2 of the Bill provides, inter alia, that:—

"Director" means the Director of Equality Investigations referred
to in section 38 of the Employment Equality Act, 1997."

Section 22 of the Bill provides, inter alia, that:—

"equality mediation officer" and "equality officer" shall be construed
in accordance with the sections 38(4) and 38(5) of the Employment
Equality Act, 1997."

Part III of the Bill deals with the enforcement of the provisions of the
Bill and such enforcement is dependent on the existence of a "Director",and an "equality mediation officer" and an "equality officer".

No provision for the appointment of such officers is contained in the
Bill.

Their appointments are/were dependent on the provisions of s. 38 of
the Employment Equality Bill, 1996.

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"The Minister, with the consent of the Minister for Finance, shall
appoint a person to be the Director of Equality Investigations to perform
the functions conferred on the Director by or under this Act or
any other enactment."

"Any person who, immediately before the commencement of this
subsection, was holding office as an equality officer of the Labour
Relations Commission shall, at that commencement and by virtue of
this subsection, become, as an equality officer, a member of the staff
of the Director."

(b) appoint persons, including those who are equality officers
(whether by virtue of subsection (4) or of appointment under
paragraph (a)) to be equality mediation officers;

and the Director may delegate any function conferred on the Director
by or under this Act or any other enactment to an equality
officer or equality mediation officer."

As the Employment Equality Bill, 1996, has not been enacted into
law, and as the Bill does not provide for the appointment of either a
Director, equality officers or equality mediation officers other than by
reference to the provisions of the Employment Equality Act, 1997, the
enforcement provisions contained in Part III of the Bill and including ss.
22 to 41 inclusive are inoperable.

Part IV of the Bill is expressed to deal with the "Equality Authority
and related matters" and the provisions with regard to the powers and
duties of the Equality Authority referred to therein are to a considerable
extent dependent on the provisions of the Employment Equality Bill,
1996, and the presumption that the said Bill had been enacted into law.

Hamilton C.J.

(b) the Employment Equality Act, 1997, applies, means discrimination
against a person that is in contravention of that
Act or victimisation of a complainant within the meaning of
Part V of that Act;

'equality clause' has the meaning given by section 2(1) of the
Employment Equality Act, 1997;

'equality of opportunity', save in section 65, includes reference to
any act that is in contravention of an equal remuneration term or
equality clause under the Employment Equality Act, 1997;

'equal remuneration term' has the meaning given by section 2(1)
of the Employment Equality Act, 1997."

With regard to "the Equality Authority" s. 43 provides that:—

"(1) The Equality Authority (re-named as such by section 38(1) of the
Employment Equality Act, 1997) shall continue as a body corporate
with perpetual succession and power to sue and be sued in its
corporate name and to acquire, hold and dispose of land."

Section 38 of the Employment Equality Bill, 1996, had provided
that:—

"(1) On and after the coming into force of this subsection, the Employment
Equality Agency established by section 34 of the Employment
Equality Act, 1977, shall be known as An t Údarás túdarásComhionannais or, in the English language the Equality Authority,
and references in any enactment or other document to the
Employment Equality Agency shall be construed accordingly."

It is obviously the intention of the Oireachtas that the powers of the
Equality Authority would be those vested in it by the provisions of the
Employment Equality Bill, 1996, and the Bill because the Bill provides at
s. 77 thereof that:—

"The Employment Equality Act, 1977 is hereby repealed."

Consequently, the Equality Authority would be that created by s. 38,
sub-s. 1 of the Employment Equality Bill, 1996.

The foregoing matters illustrate some of the problems created in relation
to the Bill by the failure to enact into law the provisions of the
Employment Equality Bill, 1996.

Issue as to whether the Court is obliged to decide whether the remaining
or any other provision or provisions of the Bill are repugnant to the
Constitution or any provision thereof

Counsel on behalf of the Attorney General has submitted that:—

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(1) The President has referred for the decision of the Supreme Court
the question as to whether the said Bill or any provision or provisions
thereof is or are repugnant to the Constitution or to any
provision thereof;

(2) The reference is in similar terms to the reference of the Employment
Equality Bill, 1996;

(3) Having regard to the conclusion of the Court as to its obligations
under Article 26 of the Constitution upon such a reference as
stated in its decision in The Employment Equality Bill, 1996[1997] 2 I.R. 321 the court should now consider, notwithstanding
the repugnancy of s. 40, sub-s. 3 and s. 70 of the Bill, all the other
provisions of the Bill and in particular those which have been impugned
by counsel assigned by the Court and give its decision
upon the constitutionality of such provisions.

In support of this submission she relied on the following passage
contained in the decision of the Court given in ' In Re the Employment
Equality Bill, 1996 ' at p. 333:—

"In the present case, the President has referred to us the question
of whether 'the said Bill or any provision or provisions thereof' is
repugnant to the Constitution. If, in the present case, the Court were to
find one provision of the Bill unconstitutional and to say no more the
Court might have not addressed the problem or problems which is or
are causing the President concern. The result, in the event of the legislature
attempting to introduce amending legislation, could be a second
reference or series of references which would be singularly unsatisfactory
to the President and to the legislature. Moreover counsel assigned
by the Court have attacked several provisions of the Bill.
Under these circumstances, the Court is obliged to consider the whole
Bill and all its provisions, particularly those which have been impugned
by counsel as being repugnant to the provisions of the Constitution."

It is important that this statement should be placed in its proper context.
The two sentences immediately preceding this passage were as
follows:—

"In the present case the Court is confronted by a novel and wide
ranging reformist measure which is, apparently, to be followed by
other similar legislation. Another Bill (the Equal Status Bill, 1997)
has already been referred to the Court by the President."

The circumstances relating to the reference by the President of the
Employment Equality Bill, 1996, were entirely different from those

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relating to the circumstances prevailing in regard to the reference of the
Bill.

For the first time in the history of the reference procedure under Article
26, the President has referred to the Court a Bill which is known to
contain provisions in similar terms in all material respects to provisions
contained in a Bill referred on an earlier occasion which are now known
to be repugnant to the Constitution. In the result, counsel on behalf of the
Attorney General properly and unavoidably acknowledged that there were
no submissions which they could advance to the Court in support of the
constitutionality of either of these provisions of the Bill.

Counsel on behalf of the Attorney General has, however, submitted
that, notwithstanding that concession, the Court should go on to consider
the constitutionality of the provisions of the Bill which have been impugned
in their written submissions by counsel assigned by the Court. It is
urged on us that this is the duty of the Court, having regard to the provisions
of Article 26.

The obligation imposed on the Court by Article 26, s. 1, sub-s. 1 and
s. 2, sub-s. 1 is clear. It must decide every question referred to it by the
President in accordance with the terms of Article 26. In the present case,
the question referred by the President is as to whether the Bill or any
provision or provisions thereof is or are repugnant to the Constitution or
to any provision thereof. In the light of the concession already referred to,
the answer to that question must be that s. 40, sub-s. 3 ands. 71 of the Bill
are repugnant to the Constitution, for the reasons set out in the decision of
this Court on the reference of the Employment Equality Bill.

It is in those unique circumstances, that the Court must consider
whether it can—or should—proceed to consider the other provisions of the
Bill.

The problem that had confronted the Court in the reference of the
Employment Equality Bill, 1996, was whether it would have fulfilled its
constitutional duty under Article 26, s. 2, sub-s. 1 to consider "every
question referred to it by the President" and "pronounce its decision on
such question", if it had decided that one provision was repugnant to the
Constitution and the judgment had remained silent as to the rest of the
Bill.

To a degree, at least, the Court modified its previous jurisprudence in
this regard.

"It is to be noted that the Court's function under Article 26 is to
ascertain and declare repugnancy (if such there be) to the Constitution
in a referred bill or in the specified provision or provisions thereof. It
is not the function of the Court to impress any part of a referred bill
with a stamp of constitutionality. If the Court finds that any provision
of a referred bill or of the referred provisions is repugnant, then the
whole bill fails, for the President is then debarred from signing it—
thus preventing it from becoming an Act. There thus may be areas of
a referred bill or of referred provisions of a bill which may be left
untouched by the Court's decision."

The Court went on to say:—

"it is for this reason that for it [the Court] 'to impress any part of a
referred bill with a stamp of constitutionality' would be for it to act
without constitutional authority and in disregard of the constitutional
doctrine of the separation of powers."

Because of the particular circumstances of the Employment Equality
Bill, 1996, reference, if the Court had simply disposed of the Bill after a
preliminary finding that a particular provision or particular provisions
were repugnant and had remained silent as to the remainder of the Bill,
the Court would have not have addressed other pressing questions and the
ultimate result would have been (as stated in the judgment) at p. 333 that

"in the event of the legislature attempting to introduce amending
legislation . . . a second reference or series of references [might have
been necessary] . . . which would be singularly unsatisfactory to the
President and to the legislature."

Therefore, the Court's decision comprehensively to review the Employment
Equality Bill, 1996, was appropriate to the particular circumstances
of that Bill.

The circumstances relating to the reference by the President of the
Employment Equality Bill, 1996, were entirely different from those
relating to circumstances prevailing in regard to the present reference.

As counsel assigned by the Court submitted, Article 26 must be read
in tandem with Article 15, s. 4, sub-s. 1 of the Constitution which provide
that "the Oireachtas shall not enact any law which is in any respect
repugnant to this Constitution or any provision thereof". It was further
submitted that the presumption of constitutionality in relation to Acts

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passed by the Oireachtas or in the referred Bill, could not apply where
either contained provisions which were manifestly repugnant to the
Constitution. The repugnancy existing in s. 71 and s. 43, sub-s. 3 of the
Bill has been demonstrated in the previous decision of the Court in the
Employment Equality Bill, 1996, reference.

In the first instance the Employment Equality Bill, 1996, having been
passed by both Houses of the Oireachtas, was entitled to the presumption
that no provision thereof was repugnant to the Constitution because as
stated in the course of the decision:—

As the Employment Equality Bill, 1996, and all its provisions enjoyed
the presumption of constitutionality the onus on counsel assigned by the
Court who sought to impugn certain provisions of this Bill was clearly to
establish such repugnancy. Counsel on behalf of the Attorney General had
argued that none of the provisions of that Bill was repugnant to the
Constitution or any provision thereof.

The Court, having heard these arguments from both counsel assigned
by the Court and counsel on behalf of the Attorney General considered
that it was obliged to consider the whole of the Employment Equality Bill,
1996, and all its provisions particularly those which had been impugned
by counsel as being repugnant to the provisions of the Constitution and
did so.

A different situation arises in connection with the reference of the Bill
in this case.

The Bill was passed by the Oireachtas at a time when the members of
the Oireachtas knew that the Employment Equality Bill, 1996, had not
been enacted into law by reason of the fact that the Bill had not been
signed by the President as required by Article 13, s. 3, sub-s. 1 of the
Constitution but had been referred by the President pursuant to the
provisions of Article 26 of the Constitution to the Supreme Court for a
decision as to whether the said Bill or any provision or provisions thereof
was or were repugnant to the Constitution or any provision thereof.

[1997]

The Equal Status Bill, 1997

402

2 I.R.

Hamilton C.J.

S.C.

The Bill as passed by both Houses of the Oireachtas contained references
to the Employment Equality Act, 1997, and provisions, which for
their application and enforcement were dependant on the enactment into
law of the Employment Equality Bill, 1996.

In spite of the fact that the Bill contained references to an Act which
had not been enacted into law it was presented to the President for
signature and for promulgation in accordance with the provisions of
Article 25, s. 1 of the Constitution.

It is admitted by counsel on behalf of the Attorney General that certain
provisions of the Bill are inoperable because of the decision of the
court that the Employment Equality Bill, 1996, was repugnant to the
Constitution. She submits, however, that the mere fact that a Bill is, in
part, inoperable, does not of itself make it unconstitutional. The Court
accepts this submission.

But, in addition to the provisions of the Bill which are inoperable, the
Bill contains two provisions which are unconstitutional. Once the Court,
at the outset of its deliberations, knows that portions of the Bill are
indisputably repugnant to the Constitution, it is difficult to see why the
Court should embark on a consideration of other provisions of the Bill. In
this context the fact that among these other provisions are many provisions
which are admittedly inoperable seems to illustrate the futility of
any such exercise.

The President has referred the Bill to this Court for a decision on the
question as to whether the Bill or any provision or provisions thereof is or
are repugnant to the Constitution or to any provision thereof.

At the outset of the oral hearing, the Court found itself confronted by
a Bill which contains two sections which were and are indisputably
repugnant to the Constitution. As a result the Bill enjoys no presumption
of constitutionality. There is no presumption for counsel assigned by the
Court to rebut and no justiciable issue for the Court to try. This is a totally
different situation from that which arose in the course of the Court's
deliberations on the Employment Equality Bill, 1996.

Under these circumstances, it is sufficient for the Court to decide that
s. 40, sub-s. 3 and s. 71 of the Bill are repugnant to the Constitution.

The President will be so informed.

I certify this to be the judgment and decision of the Supreme Court
pronounced on the 19th June, 1997.